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2003-024S:\Our Documents\Ordinances\03kDenton Crossing 380 Amendment.doc ORDINANCE NO. ~t~(~f- t~'~ ¢ AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AMENDMENT TO AN ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT DATED NOVEMBER 27, 2001 BETWEEN THE CITY OF DENTON AND DENTON CROSSING PARTNERS LTD. WHICH WAS DULY ASSIGNED TO ORIX HUNT DENTON VENTURE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an Amendment to Economic Development Program Grant Agreement (the "Amendment"), in substantially the form of the Amendment which is attached hereto and made a part of this ordinance for all purposes. SECTION 2. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties as set forth in the Amendment. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the c7~/~-/2 day of ~At,/~-~, 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ov is HERBERT L. PROUTY, CITY ATTORNEY BY: ~ THE STATE OF TEXAS} COUNTY OF DENTON} AMENDMENT TO ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT This ~Amendment to Economic Development Grant Agreement ("Amendment") is made as of the ~ day of January, 2003 between the City of Denton, a Texas municipal corporation ("City") and ORIX Hunt Denton Venture, an Illinois general partnership ("OHDV"). WITNESSETH WHEREAS, the City and Grantee's predecessor, Denton Crossing Partners Ltd., a Texas limited partnership ("DCP") entered into a certain Economic Development Program Agreement dated as of November 27, 2001 and filed of record with County Clerk of Denton, Texas on December 21, 2001 at Volume 4989, Page 00274 (the "Agreement"), which Agreement relates to the Property legally described on Exhibit A attached hereto, and WHEREAS, DCP assigned all of its fight, title and interest in, to and under the Agreement as the. "Grantee" therein to OI-IDV by that certain Assignment of Economic Development Grant Agreement dated as of September 11, 2002 and filed of record on September 13, 2002 at Volume 5170, Page 84 (the "Assignment"); WHEREAS, as required by the Agreement, DCP provided written notice of the Assignment to the City; and WHEREAS, by virtue of the Assignment, OHDV has succeeded to all of the fights of DCP under the Agreement as the "Grantee" therein (OHDV hereinafter accordingly referred to as the "Grantee"); and WHEREAS, pursuant to the terms of the Agreement, it was contemplated that the Grantee would advance to the City the cost of the Spencer Road Improvements (as determined pursuant to the Agreement terms) (the "Spencer Road Improvement Contribution") which are contemplated by the Agreement to be constructed by the City as a part of the Public Works Project; and WHEREAS, the Public Works Project has not commenced as of this date, and City and Grantee have determined that further delay in construction of that part of the Spencer Road Improvements consisting of the water main, sanitary sewer and storm sewer improvements (the "Utility Component") could result in delays in construction of the balance of the Public Participation Items and other Improvements to be constructed by Grantee at the Property; and WHEREAS, it is in the best interests of both Grantee and City that the construction of the Public Participation Items and other Improvements be completed in an expeditious manner; and WHEREAS, pursuant to Section 9 of the Agreement, the Grantee and City agreed to do all things necessary and appropriate to carry out the terms of the Agreement and to assist each other in carrying out those terms; and WHEREAS, the City and Grantee have determined that the construction of the Utility Component at tins time (so as to coincide with similar construction activities of Grantee at the Property) is a necessary and economical action to be taken; and WHEREAS, Grantee has agreed to pay the cost of the Utility Component, and City has agreed that the amount so paid by Grantee (the "Spencer Road Utility Component Amount") shall for all purposes under the Agreement constitute an Actual Cost of a Public Improvement Item eligible for reimbursement in the calculation of the Program Grant, and that accordingly the payment of the Spencer Road Utility Component Amount by Grantee shall be deemed to constitute a part of the Spencer Road Improvement Contribution required to be made by Grantee under the Agreement, and WHEREAS, Grantor and City desire to formally document the agreements outlined in the above recitals. NOW THEREFOR, in consideration of the covenants and agreements herein contained, Grantor and City hereby agree as follows: 1. Recitals/Defined Terms. That (a) the recitals set forth above are true and correct and are incorporated herein by this reference, and (b) that any capitalized terms utilized in this Amendment and not herein defined shall have the meanings ascribed to such terms in the Agreement. 2. Agreement to Construct Utility Component. Grantee and City agree that, notwithstanding the terms of the Agreement, Grantee shall cause the construction of the Utility Component of the Spencer Road Improvements to be constructed at Grantee's expense and the Utility Component shall no longer be a part of the Public Works Project to be constructed by City. Such construction shall be performed pursuant to a construction contract (the "Contract") with L.H. Lacy Co. ("Contractor") to be executed among Grantee, City and Contractor, in form and substance reasonably satisfactory to City. The amount to be paid by Grantee Contractor under the Contract has been determined to be $209,700, which is hereby declared to be Spencer Road Utility Component Amount. City acknowledges and agrees that upon payment by Grantee of the Spencer Road Utility Component Amount, the same shall for all purposes under the Agreement constitute an Actual Cost of a Public Improvement Item eligible for reimbursement in the calculation of the Program Grant. 3. A~reement Related to Spencer Road Improvement Contribution. In consideration of Grantee's payment for construction of the Utility Component in the amount of the Spencer Road Utility Component Amount, City acknowledges its continuing obligation to construct that portion of the Spencer Road Improvements other than the Utility Component as a part of the Public Works Project on the terms otherwise provided in the Agreement. City further acknowledges that, as a result of the agreements herein contained (and provided Grantee constructs and pays for the Utility Component as herein contemplated), Grantee's obligation to contribute to the cost of the Public Works Project shall consists solely of the obligation to advance to the City the cost of construction of those portions of the Spencer Road Improvements other than the Utility Component when required under the Agreement terms. 4. Full Force and effect; Authorit3' to Execute. Grantee and City acknowledge and agree that the Agreement, as amended hereby, is and remains in full force and effect between them. Grantee and City, respectively, further represent and warrant to each other that this Amendment 2 has been approved by all necessary corporate or municipal authorities, as the case may be, and that the person(s) executing the agreement their behalf have full power and authority to bind them to the terms and provisions hereof. 5. Counterparts/Recording. This Amendment may be executed in multiple counterpart by the parties, each of which shall be deemed an original and which, when taken together shall constitute a single instrument. This Amendment may be filed for record with the Clerk of Denton County Texas by either party hereto. Balance of this page intentionally blank; Signature Page follow} 3 IN WITNESS WHEREOF, the parties have executed this Amendment to Economic Development Grant Agreement as of the day and year first above written. CITY: Attest: GRANTEE: APPROVED AS TO FORM: CITY ATTO~IEY /~ Its: 6~ity- Manager ~ ORIX HUNT DENTON VENTURE, an Illinois general partnership By: ORIX Denton Limited Partnership, an Illinois limited partnership, a general partner By: ORIX Power Center Denton, LLC, an Illinois limited liability company its general partner By: ORIX Real Estate. Equities, Inc., a Delaware corporation, its sole member Cullo~ Titlkaior Exee.~i~ Vice Pa By: Denton Crossing Partners, Ltd., a Texas limited partnership, a general partner By: Denton Crossing GP, LLC, a Texas limited liabilit company, its general partner By: Hunt Properties, Inc., a Texas corporation, its Manager Name: A1Allred Title: President 4 CITY: Acknowledgements State of Texas ) County of Denton ) · ~tlT~s[in~..~ttlw~as alt~wl~dged/ before me on the ~J day of~/d,t~; 200[ by ~/[4~{A~,/]~e [~/0~./~"]/~ of the City of .2~nton, Texas~/and ~rested to by (Jt~tat~h ffJ/~l~/~rq/~such ¢lty, on behalf of suc~C~ey, j' ff il~ ~IN F0;$YI~ .... i $otary~ublic in and for ~e State of Texas {l ~ _ !1 My Commission expires: ~f-f4~'~ State of Texas ) County of Denton ) This instrument was acknowledged before me on the ~_~Say of~,~/, ~.~by Al Allred as. President of Hunt Properties, Inc., a Texas corporation, as manager of Denton Crossing GP, LLC, a Texas limited liability company, as general partner of Denton Crossing Parmers, Ltd., a Texas limited partnership, as a general parmer of ORIX Hunt Denton Venture, an Illinois general partnership, on behalf of such partnership. } ~${~'~=. Notary Public, State of Texas )~ MY Commission ~xplres State of ~11/0;'~ ) ComW of ~ ) Notary P~I[c in and for the State ofT, exas My Commission expires: O,~. ~g;~ !~),~ o~T~s instrument was acknowledged before me on the /~-t},day of ~nt,l~rx/, ~0~ by tf t£zE7]lC lko, h asoff, ~ ~ of O~ Real Estate Equifi;~a Delaware co¢oration,'as sole ~ber of O~Powcr Center Denton, LLC, ~ Hlinois limted liabiliW company, as general p~g of O~ D~ton Limited Pa~ship, an ~linois li~ted pamership, as a general pa~er of O~ H~t Denton Venue, ~ Hlinois geng~gship, on bc~l~of su~ pamgship. ~~~,~~ My Co~ission expires EXHIBIT A Property Description BEING all that certain tract or parcel of land situated in the Mary L. Austin Survey, Abstract No. 4, the John W. Cheek Survey, Abstract No. 324, and the J.S. Taft Survey, Abstract No. 1256, of Denton County, Texas, being all of Lot 1, Block A, Lone Star Par 3 Addition, an addition to the City of Denton filed of record in Cabinet I, Slide 277, Plat Records of said County, and being all of that tract of land conveyed to Pacific Asset Management, Inc., Volume 5128, Page 538; Mark A. Kuhn ,Volume 4163, Page 680; Roy Dean & Patsy Smith, Volume 489, Page 92; D. Schiflet & W. Schweitzer, Volume 1129, Page 61; J. Hudspeth Jr. & W. Schweitzer, County Clerk's File Number 95R0080326; J. Hudspeth, Jr. & D. Shiflet Hudspeth, Volume 1708, Page 661; Shifter Financial Corp., W. Schweitzer, J. Hudspeth, Jr., & D. Hudspeth, Volume 1493, Page 129; The Baptist Foundation of Texas, Volume 4163, Page 674, filed for record in the Public Records of Denton County, Texas, said tract being more particularly described by metes and bounds as follows: BEGINNING at a 5/8" iron rod set in the North line of State Highway Loop 288, from which a 5/8" iron rod with an aluminum TXDoT cap bears South 65 degrees 39 minutes 28 seconds West, 21.88 feet, and fi'om which a 1/2" iron rod found, the Southwest comer of Lone Star Par 3 Addition, according to the plat filed of record in Cabinet I, Page 277, Plat Records of Denton County, Texas, bears North 00 degrees 13 minutes 40 seconds West, a distance of 1.60 feet for the Southwest comer of this tract; THENCE North 00 degrees 13 minutes 40 seconds West, at 1.60 feet pass the said 1/2" iron rod found, the Southwest comer of said Lone Star Par 3 Addition, in all a distance of 1681.35 feet to a 1/2" iron rod found in the approximately South line of Spencer Road, for the Northeast comer of that certain tract of land conveyed to Charles E. Bailey according to the deed filed of record in Volume 4083, Page 1299, Deed Records of Denton County, Texas, and the Northwest comer of said Lone Star Par 3 Addition, for the Northwest comer of this tract; THENCE South 88 degrees 03 minutes 04 seconds East, along the approximate South line of said Road, and along the North line of said addition, a distance of 1125.52 feet to a 1/2" iron rod found at the Northwest comer of that certain tract of land described in a lease to Lone Star Gas Company according to the lease document filed of record in Volume 410, Page 455, and being the remainder of that certain tract of land conveyed to M.M. Smith according to the deed filed of record in Volume 305, Page 258, Public Records of Dento. n County, Texas, said iron rod also being a comer of this tract; THENCE South 02 degrees 10 minutes 48 seconds West, along the West line of said Lone Star Gas Lease tract, a distance of 144.97 feet to a 1/2" iron rod found for the Southwest comer of said tract, and being the most southerly Northwest Comer of that certain tract of land conveyed to Roy Dean and Patsy Smith according to the deed filed of record in Volume 489, Page 92, Deed Records of Denton County, Texas, for a comer of this tract; Exhibit A -- Property Description THENCE South 88 degrees 02 minutes 05 seconds East, along the South line of said lease tract and the most westerly North line of said Smith tract, a distance of 50.39 feet to a 1/2" iron rod found for the Southeast comer of said lease tract, and being an inside ell comer of said Roy Dean and Patsy Smith tract for an inside ell comer of this tract; THENCE North 02 degrees 02 minutes 52 seconds East, along the East line of said lease tract and the most northerly West line of said Smith tract, a distance of 145.50 feet to a 1/2" iron rod found in the approximately South line of said Road, for the Northeast comer of said lease tract and the most northerly Northwest comer of said Smith tract, for a comer of this tract; THENCE South 88 degrees 35 minutes 31 seconds East, along the approximate South line of said road and the North line of said Roy Dean & Patsy Smith tract, a distance of 259.72 feet to a 1/2" iron rod found for the Northeast comer of said tract and being in the West line of said D. Schiflet & W. Schweitzer tract, for a comer of this tract; THENCE North 00 degrees 26 minutes 30 seconds West, crossing said road, a distance of 51.63 feet to a 1/2" iron rod found in the approximate North line of said road for the Northwest comer of that certain tract of land conveyed to D. Schiflet & W. Schweitzer according to the deed filed of record in Volume 1129, Page 61, Deed Records of Denton County, Texas, for a comer of this tract; THENCE along the approximate North line of Spencer Road the following courses and distances; South 88 degrees 33 minutes 38 seconds East, along the North line of said Schiflet & Schweitzer tract, a distance of 139.74 feet to a 3/8" iron rod found at the Northeast comer thereof; South 88 degrees 01 minutes 39 seconds East, along the North line of that certain tract of land conveyed to J. Hudspeth, Jr. & Schweitzer according to the deed filed of record under County Clerk's File Number 95R0080326, Public Records of Denton County, Texas, a distance of 104.69 feet to a 5/8" iron rod set at the Northwest comer of that certain tract of land conveyed to J. Hudspeth, Jr. and D. Shiflet-Hudspeth according to the deed filed of record in Volume 1708, Page 661, Deed Records of Denton County, Texas; South 88 degrees 11 minutes 27 seconds East, along the North line of said tract, a distance of 129.05 feet to a 3/4" iron rod found at the Northeast comer thereof; South 86 degrees 53 minutes 08 seconds East, along the North line of that certain 2.5 acre tract of land conveyed to Shiflet Financial Corporation, W. Schweitzer, J. Hudspeth, Jr. & D. Hudspeth, according to the deed filed of record in Volume 1492, Page 129, Deed Records of Denton County, Texas, a distance of 240.21 feet to a 3/4" iron rod found, an angle point in the North line thereof; South 74 degrees 36 minutes 30 seconds East, along said North line, a distance of 245.25 feet to a 5/8" iron rod set in the West line of State Highway Loop 288, from which a 1/2" iron rod bears South 74 degr.ees 36 minutes 30 seconds East, a distance of 1.94 feet for the Nor'daeast comer of said 2.5 acre tract and the Northeast comer of this tract; THENCE South 26 degrees 15 minutes 21 seconds West, crossing said Spencer Road and along the West line of said Highway, and along the East line of said Shiflet Financial Corporation, Schweitzer, Hudspeth & Hudspeth tract, a distance of 61.34 feet to a 5/8" iron rod set being an angle point in the West line of said Highway and said East line, for a comer of this tract; THENCE South 19 degrees 12 minutes 47 seconds East, along the West line of said Highway and the East line of said tract, a distance of 53.48 feet to a 5/8" iron rod set for a comer of this tract, said point being the beginning of a non-tangent curve to the right; THENCE along said Highway and the South line of said Shiflet Financial Corporation, Schweitzer, Hudspeth & Hudspeth tract and along the Southeast line of that certain tract of land, a 3/4% interest which was conveyed to The Baptist Foundation of Texas according to the deed filed of record in Volume 4163, Pages 674,677, Deed Records of Denton County, Texas, and of which the remaining 1/4% interest was conveyed to Mark Kulm according to the deed filed of record in Volume 4163, Page 660, Deed Records of Denton County, Texas, and along said curve to the right, having a radius of 2804.79 feet, and a central angle of 15 degrees 48 minutes 46 seconds, a chord bearing and distance of South 44 degrees 07 minutes 45 seconds West, 771.62 feet, an arc length of 774.08 feet to a 5/8" iron rod set for a comer of this tract at an angle point in the Northwest line of said Highway; THENCE South 58 degrees 25 minutes 34 seconds West, along said Highway and the South line of said Baptist Foundation Tract, a distance of 195.82 feet to a 5/8" iron rod set for the beginning of a curve to the right and for a comer of this tract; THENCE along said curve to the right and said Highway line, same being the South line of said Baptist Foundation tract and said Mark A. Kutm tract, said curve having a radius of 2789.79 feet, and a central angle of 04 degrees 23 minutes 05 seconds, a chord bearing and distance of South 58 degrees 13 minutes 41 seconds West, 213.45 feet, an arc length of 213.50 feet to a 5/8" iron rod with TXDoT aluminum cap found for a comer of this tract at ~an angle point in the Northwest line of said Highway; THENCE South 60 degrees 25 minutes 13 seconds West, along said Highway and the South line of said Baptist Foundation and Kuhn tract, and along that certain tract of land conveyed to Pacific Asset Management, Inc. according to the deed filed of record in Volume 5128, Page 538, Deed Records of Denton County, Texas, and along the South line of said Lone Star Par 3 Addition, a distance of 980.80 feet to an aluminum TXDoT cap found in concrete for an angle point in the Northwest line of said Highway for a comer of this tract; THENCE South 65 degrees 39 minutes 28 seconds West, along said Highway and the South line of said Addition, a distance of 580.63 feet to the Place of Begirafing, and containing 54.16 acres of land.